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[2009] ZAGPPHC 120
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Makgobatlou v Transnet Pension Fund (5573/2005) [2009] ZAGPPHC 120 (29 September 2009)
IN
THE
HIGH
COURT
OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
Case
No:
5573/2005
In
the matter between:
DINA
MARIA
MAKCOBATLOU
APPLICANT
And
TRANSNET
PENSION FUND RESPONDENT
JUDGMENT
MAVUNDLA,
J.
[1]
On the 2 December 2005, I dismissed with costs the appellant's claim,
on a point
in
limine
that
the appellant approached this Court not as an appeal court but as
court of first instance.
I
held
that the appellant has not approached the Adjudicator of Pension
Funds as the result there is no decision taken by the adjudicator
and
that therefore this Court has no jurisdiction.
[2]
The appellant lodged on 14 December 2005 her application for leave to
appeal the aforesaid decision. For unknown reasons, the
application
for leave to appeal was only set down for hearing before me on 1
September 2006, on which date the matter by agreement
between the
parties was postponed
sine
die.
Nothing
happened since then until when the matter was heard by me on 23
September 2009. There is no explanation as to why there
has been such
an inordinate delay before the matter was again set down. I have
decided, for the sake of justice, not to demand
an explanation for
such inordinate delay, but to deal with the merits of the application
for leave to appeal.
[3]
The grounds of the application are that: (a) This court erred in
dismissing the applicant's claim on the basis that this Court
has no
.jurisdiction to hear the matter; (b) The respondent in paragraph 5
of her opposing affidavit admitted that this Court has
jurisdiction;
(c) That this Court erred in allowing counsel for the respondent to
raise a new issue of jurisdiction for the first
time at the hearing,
while in the documents filed at court jurisdiction was not an issue;
(d) That the opposing affidavit of the
respondent was never
supplemented at any stage to raise the issue of lack of jurisdiction
on the part of this Court.
[4]
It is trite that the consideration of an application for leave to
appeal, is whether there are reasonable prospects of another
court
arriving at a different decision as the one
I
have
arrived at, vide Roman Catholic Church (K' Dorp) v Southern Life
Assoc;
1
Finbro
Furnishers v Registrar of
Deeds.
2
[5]
It has been submitted by Mr. Motloba, on behalf of the applicant,
that, since the respondent had made a formal admission in
its
paragraph 5
3
that this Court has jurisdiction, such admission could not be
withdrawn by mere submission by counsel for the respondent, by
contending
that the court has no jurisdiction. Motloba further
contends that an admission can only be withdrawn by filing an
affidavit, explaining
why the admission was made and why it is now
withdrawn. He submits that until such time that the admission is
properly withdrawn
through the filing of an affidavit, the admission
stands. He submits that this Court has therefore erred in
entertaining the point
in
limine
and
that another court may arrive at a different conclusion.
[6]
Ms Ngomane, for the respondent has stated,
inter
alia,
that
the respondent should be granted leave to file a supplementary
affidavit to amend its opposing affidavit so as to be consistent
with
its initial point
in
limine
on
jurisdiction.
[7]
Ms Ngomane further submits that there are no prospects of success in
the appeal, because, sp she submits, this Court's decision
was
correctly arrived at. For this submission, she relies on the matter
of
Meyer
v Iscor Pension
Fund.
4
[8]
The submission on behalf of the applicant that an admission can only
be withdrawn by way of an affidavit, is indeed correct,
vide
Swartz
v Van
Der
Walt
T/A
Sentraten.
5
[9]
It needs mention that the question of whether a point in law, is
being entertained or not, is a matter of discretion, vide
Sibeka
v Minister of Police.
1984
(1) SA 794
H-795A.
[10]
Since I allowed the point
in
limine
to
be argued without the respondent having formally withdrawn the
jurisdictional concession by way of an affidavit, there is a
possibility that another court may find that in doing so I erred,
which I do not concede.
[11]
Even if it were to be found that I was wrong in upholding the point
in
limine,
the
next question is whether the applicant has any prospects of success
in the appeal. That question will
depend
on
whether the respondent effects an amendment to its affidavit.
[12]
The respondent seeks leave to amend its affidavit so as to withdraw
the concession it had made, so as to reconcile its affidavit
with its
submission that the Court has no jurisdiction. Indeed, leave to amend
pleadings may be granted at appeal stage, vide
Bellairs
v Hodnett and Another.
6
However,
since I am
functus
officio,
I
do not think that it is competent of me to grant such leave at the
stage of an application for leave to appeal. The granting of
leave to
amend, is a matter of the discretion of the appeal court. I am of the
view that the respondent will have to file the necessary
application
for leave to amend once the appeal date has been allocated, so as to
enable the applicant to file her affidavit dealing
with the averments
that shall have been made by the respondent in regard to the
application for leave to amend. All this will have
to be done
immediately once the date of the hearing of the appeal, but in a
manner so as not to delay the hearing of the appeal,
preferably
before the filing of the heads of argument of the respective parties
[13]
Since I decided the matter on a point which I regarded as dispositive
of the matter, the point
in
limine
of
jurisdiction, in the event the application for leave to amend is
unsuccessful, then the matter would have to be decided on the
merits.
As I did not address the matter on the merits, an appeal court,
assuming that it does not uphold the point
\n
limine,
in
the interest of justice, will be within its powers to decide the
matter on those issues rather than remit the matter to this
Court.
[14]
Although I am of the view that the issue of jurisdiction was properly
decided and there are no prospects of success of the
appeal on this
point, for the reason that there is always that possibility that
another court deciding the matter on the merits,
might find in favour
of the applicant, i am accordingly obliged to grant leave to appeal.
[17]
Although the applicant is the successful party, the general
applicable rule is that the costs must be awarded to her However,
in
applications for leave to appeal matters, it is always advisable to
reserve these costs for the outcome of the appeal, and I
shall
accordingly do so.
[16]
In the result I make the following order:
1.
That leave to appeal
to
the Full Bench of the North Gauteng is granted.
2.
That cost of application for leave to appeal will be costs in the
outcome of the appeal.
N..M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
HEARD:
23 SEPTEMBER 2009
DELIVERED:
29 SEPTEMBER 2009
APPLICANT'S
ATT : ATTORNEY B.W. MOTLOBA.
APPLICANT'S
ADV : Mr. B.W. MOTLOBA (attorney).
RESPONDENT'S
ATT : MOLEFU DLEPU
ATTORNEYS.
DEFENDANTS ADV : MS. H. L. NGOMANE.
1
1992 (2) SA 807
at 812.
2
1985 (4) SA 773
(AD) at 774.
3
In paragraph 3 of the applicant's founding affidavit it was averred
that this Court has jurisdiction. In its paragraph 5 the
respondent
pleaded as follows: "
AD paragraph 2.3 thereof
: The
contents of this paragraph are admitted."
4
2003 (2) SA 715
(SCA).
5
1998 (1) SA 53
at 57 A-C; vide also Bellairs v Hodnett and Another
1978 (1) SA 1109
(AD) at 1150F-G.
6
1978 (1) SA 1109
(AD) at 1150F-G the full Bench of the Appellate
Division stated that " The Court's power, in its discretion to
allow amendment
of pleadings , even on appeal, is undoubted. (See
Gordon v Tarnow , supra at p.532.0 But, as it has frequently been
stated, an
amendment cannot be had merely for the asking. This is
equally, if not especially, true of opposed amendment which involves
the
withdrawal of an admission- in such cases the Court will
generally require to have before it satisfactory explanation of the
circumstances in which the admission was made and the reasons for
seeking to withdraw it (Cf., Innes C.J. in Northern Mounted Riffles
v O' Callaghan,
1909 TS 174
at 178; per Ogilvie Thomson (then
A.J).)."